Archive for the 'Contribution/Expenditure Doctrine' Category

As soon as the New York Times reported again this week on the concentrated wealth flowing through Super PACs, leading election law experts on the listserv began disputing what to make of the story. Was the spending independent “speech” that the Constitution protects? Or was it no different than massive contributions not to be confused with direct speech and as such properly regulated?

The exchange over doctrine replayed familiar themes. A key one: could the donors who have given to a Super PACs be fairly said to be engaged in their “own” speech?

Fred Wertheimer remains indignant about Citizens United and he certainly comes by this view honestly. He has been strongly for campaign finance regulation since the 1970s and had a hand in lobbying its successful passage in the first place. It is not surprising that he is very distressed by the watered-down definition of corruption articulated by the Court first in Citizens United and then with more clarity and emphasis in the “we-mean-what-we-said” restatement in McCutcheon.

Wertheimer says in this new piece what he has said before about “legalized bribery” being the product of the Court’s fecklessness and naiveté. This charge is familiar, and some object that it is tired and unproductive, but Wertheimer adds to this complaint another: that the decision unleashed “political chaos”.

The court’s worst blunder, she said, was its 2010 decision in Citizens United "because of what has happened to elections in the United States and the huge amount of money it takes to run for office.”

This is what Justice Ginsburg has said, but is not clear without a bit of guesswork which she means. But it seems to be about “what has happened to elections", including cost, and not so much how the conduct of elections translates into bad or corrupt government. One cannot read too much into it: the comment is short, but her few words describe a problem with the electoral process.

Distortion of that process, or the interference with its ideal functioning, is a major worry for those observing money in politics, separate from any consequences for the integrity of government that the politicians, once elected, are responsible for running. This electoral corruption of elections is different from the quid pro quo corruption of government that animates the strictly constitutional and legal debate.

In Friday’s New York Times, Stuart Stevens refers to just the electoral impacts of campaign finance when discussing the effects of Super PACs in altering the character of Presidential primary competition. A number of the now 17 candidates entering the Republican Presidential primary have jumped in with the confidence that, with a Super PAC at their side, they have the resources to hang in there for a spell. Doing well in the first primaries is no long an invariable condition of viability. Stevens is not all that worried about it: he likes the free-for-all. Others are less sure.

These understandings of “corruption” can be, and often are, conflated, but are very different. The case against Super PACs as agents for electoral corruption is straightforward: a handful of individuals can float a candidacy lacking in more general public support and keep it artificially alive. The costs increase for other candidates; debate stages are crowded with contenders who are not truly viable over the long-term; and the mechanism by which public preference is measured is skewed.

Perhaps for this reason, it goes unnoticed that arguments directly related to government corruption—and proposals for reform based on them—seem, by contrast, increasingly clouded and tenuous.

The doctrinal architecture of campaign finance is straining under the pressure of adapting to new realities. Most of the hard questioning has been expended on the faded distinction between contributions and expenditures and its relationship to free speech values. It is all thoroughly familiar by now: the contribution which is “speech by proxy”, entitled to less protection, and the independent expenditure which is more pure speech and, while subject to disclosure requirements, cannot be put under dollar limits. How the money is spent is the controlling inquiry: who spends it is less important, and Citizens United pushed this point harder in holding that free speech rights don't depend on the identity of the speaker.

The hole in this analysis is the absence of attention to the activity of politics—the "doing of politics.” People who come together are doing more than speaking: they are doing politics, acting in concert to effect political goals.
This is a dimension of First Amendment jurisprudence that is normally covered in discussion of the freedom of association. But attention to association has been fleeting, largely disappearing from Supreme Court jurisprudence, and when it reappears, it often collapses back into the free speech-centered jurisprudence that has reigned for decades now. The associational right is treated as expressive association, just the association that enables participants in group efforts to amplify their individual "views."

An account of doing politics may seem in the first instance to serve only a broadened perspective of First Amendment protections. On this view, it is another weight placed on the scales against regulation. But it is also a way to think about what is really happening in the conduct of politics, and to relate it to the goals and limits—both the goals and limits—of regulation. And it seems especially useful now when a new Super PAC donor, one refusing to play “second fiddle,” lays claim to a commanding position in electoral politics.

The Brennan Center regularly devotes space to a review of the literature on the money-in-politics debate, and this week, Benjamin Brickner discusses an insightful paper on “coordination” by Professor Michael Gilbert of the University of Virginia and Brian Barnes, a J.D. candidate there. The authors present the case that anti-coordination rules don’t operate to prevent corruption achieved through independent spending--and that they can’t, even if strengthened. There are too many ways around coordination restrictions: a spender can comply with the law, spending “independently” for a candidate, but still offer the politician value that can be “cashed in” later. If coordination rules do not deter corruption but do limit speech, then their constitutionality is thrown into question.

It is not difficult for an independent group to figure out what the politician may need and appreciate. Public sources of useful information are plentiful and these can be supplemented by private polling and other expert advice; and if there is a risk of missing the mark and timing or targeting an ad imperfectly, there remains value to be conveyed. As Gilbert and Barnes point out, this is a question only of the efficiency of the expenditure, and some ground can be made up by just spending more money. A politician can still be grateful for $75,000 of discounted benefit from an ad that cost $100,000. As Gilbert and Barnes frame the point, “[U]nless the law prohibits candidates from publicizing their platforms and strategies, and outsiders from paying attention, then outsiders will always have enough information to make expenditures that convey at least some value.”